Ukraine war: mother kidnaps her own daughter – father still loses in court
Created: 2022-10-19 06:15
By: Anna Lorenz
The Higher Regional Court of Stuttgart came up with a decision that seemed strange on Tuesday, but it shows that the well-being of the child always comes first.
Stuttgart – Just imagine: one day a parent takes their child and goes away with it.
One does not agree and asks the court for the repatriation of the offspring.
This establishes that there has been a kidnapping – but the child should not be brought back.
The decision seems counterintuitive as long as you don't know a detail.
But it is crucial, as the judgment of the Stuttgart Higher Regional Court has now confirmed.
Stuttgart: mother kidnaps daughter from Ukraine to Germany – father requests repatriation
In the case to be decided, the hometown of the child was the city of Odessa.
However, it is not a case of the numerous kidnappings of children by the Russian military.
In fact, the mother of the then one-year-old girl fled the port city with her daughter in March 2022 because of the war in Ukraine.
"After several air raid alarms, some of which the parents had spent with the child in the car in an underground car park," the court said, "the mother went with her daughter [...] to Germany."
However, the woman went on this trip without the child's father having consented to it.
However, the couple share custody of their daughter.
According to the relevant Hague Convention, the father then argued to the court that the facts should be classified as child abduction.
He therefore applied for his daughter's return to Ukraine.
However, the district court in Stuttgart, which was entrusted with the case in the first instance, rejected this.
Because of the Ukraine war: OLG Stuttgart refuses repatriation despite classification as "child abduction"
However, in the trial before the higher regional court, which was responsible for the father's subsequent complaint, shared the assessment of the district court.
In the present case, Art. 13 I b HKÜ prohibits the return of the child.
The provision offers a hardship clause for cases in which the return of the child is associated with a serious risk of physical or mental harm to the child.
According to the Senate, “the entire territory of Ukraine has been a war zone since February 24, 2022, as both the travel warning from the Federal Foreign Office and the current media reports show”.
In such a case there is a “concrete danger to the life of the child who is not yet two years old”, so that the hardship clause applies.
Russia has been bombing Ukraine since February 24.
A deportation of the girl to Moldova, requested by the father as an alternative, is also out of the question, since according to the basic idea of the HKCC and the case law, only a return to the country of the child's previous residence is possible.
(askl)
